Paul v. South Carolina Department of Transportation et al

Filing 43

OPINION and ORDER RULING ON REPORT AND RECOMMENDATION adopting 38 Report and Recommendation, dismissing the action without prejudice and without issuance and service of process. Signed by Honorable Cameron McGowan Currie on 10/8/2014. (cbru, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Ronald I. Paul,

)
)
Plaintiff,
)
)
v.
)
)
SOUTH CAROLINA DEPARTMENT OF
)
TRANSPORTATION; PAUL D. DE HOLCZER, )
individually and as a partner of the law Firm of
)
Moses Koon & Brackett PC; IIENE A.
)
BUCKLES, as personal representative of the Estate )
of G.L. Buckles individually and Iiene A. Buckles )
individually, G.L. BUCKLES, as Personal
)
Representative of the Estate of Keith J. Buckles
)
and G.L. Buckles individually personal
)
representative Keith J. Buckles;
)
MICHAEL H. QUINN, individually and as
)
senior lawyer of Quinn Law Firm LLC;
)
J. CHARLES ORMOND, JR., individually and as )
a partner of the Law Firm of Holler, Dennis,
)
Corbett, Ormond, Plante & Garner;
)
OSCAR K. RUCKER, in his individual capacity as )
Director, Rights of Way South Carolina
)
Department of Transportation;
)
MACIE M. GRESHAM, in her individual capacity )
as Eastern Region Right of Way Program Manager, )
South Carolina Department of Transportation;
)
NATALIE J. MOORE, in her individual capacity )
as Assistant Chief Counsel, South Carolina
)
Department of Transportation;
)
REGINALD I. LLOYD, in his individual capacity )
as Circuit Court Judge, Richland County Court of )
Common Pleas,
)
5th Circuit,
)
)
Defendants.
)
_________________________________________ )

C/A NO. 3:13-1852-CMC-PJG

OPINION and ORDER

This matter (“Paul III”) is the third action Plaintiff has filed in this court relating to the same
underlying dispute: claims arising from a state condemnation proceeding. See ECF No. 10 at 2

(explaining history of related actions, C. A. No. 3:12-1036-CMC-PJG (“Paul I”), and C.A. No. 3:13367-CMC-PJG (“Paul II”)). The underlying condemnation proceeding related to a commercial
property Plaintiff leased from Keith J. Buckles. ECF No. 10 at 3.
Defendants. Defendants named in the Original Complaint in this action, Paul I and Paul
II, include the state entity that pursued the condemnation (South Carolina Department of
Transportation (“the SCDOT”)), three employees of the SCDOT (one identified as Assistant Chief
Counsel) (collectively with the SCDOT “SCDOT Defendants”), G.L. Buckles, the personal
representative of Keith J. Buckles’ estate (“Landowner”), and three private attorneys who were
involved in the proceeding, including Plaintiff’s own attorney (collectively “Attorney Defendants”).
Id. at 2. The Amended Complaint adds two new Defendants, Iiene A. Buckles, the personal
representative of the estate of G.L. Buckles (included within the designation “Landlord”), and
Reginald I. Lloyd, Esq., who served as a state court judge at times relevant to the allegations against
him (“Judge Lloyd”).
Dismissal of Earlier Actions. Paul I and Paul II were dismissed without prejudice for
failure to state a claim, the first after service and on motion of Defendants, the second based on preservice review. See Paul I, ECF Nos. 116, 127; Paul II, ECF Nos. 14, 19, 23. Both of the prior
dismissals were reduced to judgment of dismissal without prejudice. Paul I, ECF No. 128; Paul II,
ECF No. 20. Neither judgment was appealed.
Although the earlier dismissals were, ultimately, without prejudice, certain determinations
in those actions are entitled to preclusive effect in light of Plaintiff’s failure to appeal. This includes
a determination that the SCDOT and the individual SCDOT Defendants were entitled to immunity
from suit to the extent sued in their official capacities. Likewise, the determinations that the
2

allegations found in the prior complaints were insufficient to state a claim are entitled to preclusive
effect. The review in this action, therefore, focuses on the extent to which allegations (most
critically in the Amended Complaint) offer greater specificity or otherwise cure deficiencies noted
in the orders dismissing Paul I and Paul II.1
Prior Proceedings in this Action. The Original Complaint in the current action was also
dismissed after a pre-service review and that dismissal was reduced to judgment of dismissal without
prejudice. ECF Nos. 10 (“Original Report”), 15 (Order), 16 (Judgment). After an unsuccessful
motion to alter or amend judgment (ECF Nos. 19, 21), Plaintiff appealed the dismissal. ECF No.
23. Despite this court’s entry of judgment, the Court of Appeals dismissed the appeal and remanded
the matter based on its conclusion that Plaintiff could still “proceed with this action in the district
court by amending his complaint to provide specific facts showing his entitlement to the relief he

1

As noted in the report recommending and order granting dismissal of Paul I, Plaintiff’s
claims are not necessarily precluded by the Rooker-Feldman doctrine. See Paul I, ECF No. 116 at
9-11 (Report) & ECF No. 127 at 5-7; see also Great Western Mining & Mineral Co. v. Fox
Rothschild LLP, 615 F.3d 159 (3rd Cir. 2010) (finding Rooker-Feldman doctrine did not bar § 1983
claim for alleged conspiracy between litigants and judge, although claim failed on other grounds).
This does not, however, mean that the Rooker-Feldman doctrine does not limit Plaintiff’s claims.
See Paul I, ECF No. 127 at 6-7 (order adopting recommendation that the court find the action was
“not barred by the Rooker-Feldman doctrine, except to the extent that Plaintiff seeks to reverse or
void the state court judgments.”) (emphasis added); see also Exxon Mobil Corp. v. Saudi Basic
Indus. Corp., 544 U.S. 280 (2005) (clarifying that Rooker-Feldman doctrine applies to federal court
actions “brought by state-court losers complaining of injuries caused by state-court judgments
rendered before the district court proceedings commenced”). Other aspects of Plaintiff’s claim may
well be foreclosed by claim preclusion doctrines based on the state court proceedings (the
condemnation proceeding, related appeals, and state court tort actions raising claims similar to those
here) or earlier proceedings in this court. Id. This court need not, however, resolve the extent to
which Plaintiff’s claims may be barred by Rooker-Feldman or claim-preclusion because, as
discussed below, Plaintiff has again failed to allege facts that support a reasonable inference of
bribery or any conspiracy to violate Plaintiff’s rights.
3

seeks.” Paul v. S.C. Dept. of Transportation, Slip Op. No. 13-2431 (4th Cir. May 14, 2014)
(emphasis added).
After remand, Plaintiff filed an Amended Complaint. ECF No. 30 (ECF No. 30). In light
of the Fourth Circuit’s remand and in accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02(B)(2)(e), DSC, the undersigned again referred the matter to United States Magistrate Judge
Paige J. Gossett for pretrial proceedings.

In particular, the court sought a Report and

Recommendation (“Report”) addressing whether Plaintiff’s post-remand amendments cured the
deficiencies noted in the prior order of dismissal and in Paul I and Paul II.
On August 29, 2014, the Magistrate Judge issued a Report recommending that Plaintiff’s
Amended Complaint be dismissed without prejudice and without issuance and service of process
because the Amended Complaint, like earlier versions of the complaint in this and related actions,
fails to state a claim on which relief may be granted. ECF No. 38 (“Supplemental Report”). The
Magistrate Judge advised Plaintiff of the procedures and requirements for filing objections to the
Report and the serious consequences if he failed to do so. Plaintiff filed objections to the
Supplemental Report on September 2, 2014. ECF No. 40.
STANDARD
The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight, and the responsibility to make a final determination remains with the court.
See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo
determination of any portion of the Report and Recommendation of the Magistrate Judge to which
a specific objection is made. The court may accept, reject, or modify, in whole or in part, the
recommendation made by the Magistrate Judge or recommit the matter to the Magistrate Judge with
4

instructions. See 28 U.S.C. § 636(b). The court reviews only for clear error in the absence of an
objection. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005)
(stating that “in the absence of a timely filed objection, a district court need not conduct a de novo
review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.’”) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
PRIOR REPORTS AND RULINGS IN THIS ACTION
Original Report in Paul III. As explained in the Original Report (ECF No. 10), the
allegations in Plaintiff’s Original Complaint in this action are almost identical to those raised in Paul
I and Paul II, both of which were dismissed without prejudice for failure to state a claim. ECF No.
10 at 2.2 In his Original Complaint in this action, Plaintiff attempted to address the concerns raised
in Paul I and Paul II by pointing to (1) allegations that Keith Buckles was required, as part of his
settlement with the SCDOT, to aid the SCDOT in its claims against the premises and (2) allegations
that Defendants schemed and conspired to mislead and bribe Judge Allison Lee and Judge Lloyd.
ECF No. 10 at 9-10.
Plaintiff also construed advice his own attorney, J. Charles Ormand Jr., Esq., (“Ormond”)
gave him and Ormand’s motion to withdraw as counsel as evidence that Ormond was a coconspirator. ECF No. 10 at 9. In addition, Plaintiff alleged that Defendants furthered the conspiracy
by seeking approval of the settlement agreement between the SCDOT and Landlord and
misrepresenting that Paul agreed with its terms. Id. at 10 (Plaintiff described this order as void and
predetermined). Plaintiff suggested that Judge Lloyd’s decision to grant a motion approving the

2

As noted above, Paul I was dismissed on Defendants’ motion. Paul II was dismissed based
on pre-service review.
5

settlement is evidence of bribery. Id. Finally, Plaintiff suggests the existence of a conspiracy is
supported by Defendants’ joint actions in seeking disbursement of the settlement proceeds and in
seeking an injunction against further action by Plaintiff during the pendency of his third appeal in
the course of the condemnation proceeding. Id.
The Original Report noted that “[a]ll of these actions . . . show only that the parties attempted
to accomplish the goal of acquiring a property for use by the State.” Id. at 10. It also noted the
absence of allegations of any improper motivation on Ormond’s part.3 Id. Referring, inter alia, to
the inference of bribery Paul would draw from the fact a state court judge ruled in favor of opposing
parties, the Original Report noted that the court “need not accept the [plaintiff’s] legal conclusions
drawn from the facts,” nor “unwarranted inferences, unreasonable conclusions, or arguments[.]” Id.4
The Original Report also noted various legal roadblocks to Paul’s claims against the SCDOT itself
and the remaining SCDOT (employee) Defendants to the extent sued in their official capacity. Id.
at 11-12 (addressing Eleventh Amendment immunity, sovereign immunity, and inapplicability of
Section 1983 to a state).
Order Adopting Original Report. The undersigned adopted the Original Report, finding
that the Original Complaint in this action “once again fails to state a claim upon which relief can be
granted.” ECF No. 15 at 3. With respect to the allegations of bribery, the court noted that Plaintiff

3

In at least two places, the Original Report refers to an absence of “evidence.” ECF No. 10,
11. In context, the references are clearly to an absence of factual allegations as the review at issue
is review of a complaint.
4

The Original Report also noted that Plaintiff had and availed himself of an opportunity to
challenge the state court’s decision through motions and appeals in the state courts and was, in fact,
awarded compensation, though far less than he believed was warranted. Id. at 11. It also noted that
Paul pursued a state tort case for civil conspiracy relating to the same underlying condemnation
proceeding. Id. at 6 n.4 (quoting a document filed in Paul I).
6

had “not pleaded with any specificity the nature of the bribe” and that Plaintiff’s “allegations do not
suggest bribery.” Id. at 3-4. For example, the order noted that allegations that Defendants met prior
to a hearing and, at the hearing, “told Judge Lee that a settlement had been reached” suggested “that
the parties were working towards a settlement, not that [they] bribed Judge Lee.” Id. The order also
noted that “alleg[ations] that Judge Lloyd granted a motion” did not raise an inference of bribery.
For reasons explained in more detail below, the court reaches the same conclusion as to the
allegations in the Amended Complaint.
SUPPLEMENTAL REPORT
Supplemental Report. As the Supplemental Report explains, the Amended Complaint adds
two Defendants, Iiene A. Buckles, personal representative of the estate of G.L. Buckles (the
originally-named personal representative of the estate of Keith Buckles (all referred to collectively
here as “Landlord”)), and Reginald I. Lloyd, Esq. whose connection to this case is limited to his role
as a state court judge. ECF No. 38 at 3. It also includes allegations (largely duplicative of
allegations found in the Original Complaint) that various Defendants violated Plaintiff’s right to due
process by offering perjured testimony in state court and misleading and bribing Judge Lloyd. Id.
The Amended Complaint also appears to allege that Plaintiff is a member of a protected class
because he is proceeding pro se and was subjected to class-based, invidious discrimination based
on his pro se status.5 Id. at 3-4.
After review of the added allegations, the Supplemental Report recommends dismissal
noting, in particular, that (1) the SCDOT is not only immune from suit in this court but is not a
5

Plaintiff asserts that he should be treated as a pro se litigant throughout his state court
proceedings, even though he was represented by Ormond (at least through the non-jury trial),
because (per Plaintiff) Ormond was a co-conspirator with the remaining Defendants.
7

“person” subject to suit under 42 U.S.C. § 1983 (ECF No. 38 at 6); (2) Defendant Lloyd is entitled
to absolute immunity because the allegations against him relate solely to his role as a state court
judge (ECF No. 38 at 7); (3) the allegations against Defendant Iiene A. Buckles fail to allege facts
suggesting personal participation in a violation of Plaintiff’s constitutional rights (ECF No. 38 at 7);
and (4) the factual allegations in support of Plaintiff’s claim of conspiracy to violate due process or
equal protection suggest only lawful participation in proceedings intended to allow the state to
acquire property rather than raising a reasonable inference of an illegal conspiracy, including one
involving bribery (ECF No. 38 at 7-9).
DISCUSSION
The Fourth Circuit gave Plaintiff the opportunity to “proceed with this action in the district
court by amending his complaint to provide specific facts showing his entitlement to the relief he
seeks[.]” This he has not done.
Effect of Remand. Repeatedly in his objection memorandum, Plaintiff relies on the Fourth
Circuit Court of Appeals’ remand as precluding this court from considering certain grounds for
dismissal, at least at this stage in the proceedings. See ECF No. 40 at 6-7 (addressing immunities
available to the SCDOT); id. at 9-10 (addressing immunities available to Judge Lloyd); id. at 14-15
(addressing sufficiency of his conspiracy allegations). These arguments ignore the jurisdictional,
rather than substantive, basis for the remand. Thus, the court finds no merit in any argument that the
Fourth Circuit’s remand forecloses any of the bases on which the Original or Supplemental Reports
recommend pre-service dismissal.
Declaratory Relief. As to the SCDOT, Plaintiff also argues that his claim may proceed
despite the Eleventh Amendment or sovereign immunity because he is seeking declaratory relief.
8

While Plaintiff’s Amended Complaint does ask the court to “declare” a number of facts and legal
conclusions to be true (ECF No. 30 ¶¶ 205 a-m), he does not seek declaratory relief in the legal sense
because he does not seek a declaration relating to the future performance of official duties. See Ex
parte Young, 209 U. S. 123 (1908) (recognizing exception to immunity where plaintiff seeks
prospective relief against a state official in his official capacity to prevent future violations). Instead,
Plaintiff seeks an award of actual, consequential and special damages (id. ¶¶ 206 n-p). That these
damages are sought based on the requested declarations of fact and law is not sufficient to convert
the claim to one for declaratory relief.
Bribery (and Conspiracy) Allegations. Plaintiff notes, correctly, that, even if Judge Lloyd
is immune from suit for the alleged bribery, that immunity would not extend to other Defendants.
The critical distinction was explained in Dennis v. Sparks, as follows:
Private persons, jointly engaged with state officials in the challenged action, are
acting . . . “under color” of law for purposes of § 1983 actions. . . . Of course, merely
resorting to the courts and being on the winning side of the lawsuit does not make a
party a co-conspirator or a joint actor with the judge. But here the allegations were
that an official act of the defendant judge was the product of a corrupt conspiracy
involving bribery of the judge. Under these allegations, the private parties conspiring
with the judge were acting under color of state law; and it is of no consequence in
this respect that the judge himself is immune from damages liability.
Dennis, 449 U.S. at 27-28.6
6

Plaintiff argues that the absolute immunity defense cannot be considered as to Judge Lloyd
because this is an affirmative defense that has not (yet) been raised. ECF No. 40 at 11. It is,
however, beyond doubt that Judge Lloyd is entitled to absolute immunity because the alleged
misdeeds were, even if the result of bribery, acts within his jurisdiction (issuance of orders in a case
properly before him). Dennis v. Sparks, 449 U. S. 24, 27 (1980) (noting that, since 1872, the Court
had “consistently adhered to the rule that judges defending against § 1983 actions enjoy absolute
immunity for damages liability for acts performed in their judicial capacities” (internal quotation
marks and citations omitted)). Such defenses are, moreover, frequently relied on as a basis for preservice dismissal. See, e.g., Coleman v. Rock Hill Municipal Court, 550 Fed. Appx. 166 (4th Cir.
2014) (affirming pre-service dismissal of claim against a judge under 28 U.S.C. § 1915(e)(2)(B)
based on absolute judicial immunity).
9

Thus, proper factual allegations of a conspiracy, including a conspiracy involving bribery of
a judge, would suffice to state a claim against the non-judicial Defendants. Here, however, the
allegations are not sufficient under current pleading standards. See Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009) (statements of bare legal conclusions “are not entitled to the assumption of truth” and are
insufficient to state a claim); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“Factual
allegations must be enough to raise a right to relief above the speculative level,” thereby “nudg[ing]
[the] claims across the line from conceivable to plausible.”); Robertson v. Sea Pines Real Estate
Cos., 679 F.3d 278, 288 (4th Cir. 2012) (“Plausibility requires that the factual allegations be enough
to raise a right to relief above the speculative level on the assumption that all the allegations in the
complaint are true.” (internal quotation marks and alteration omitted)); see also Francis v.
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (noting “naked assertions of wrongdoing necessitate
some factual enhancement within the complaint to cross the line between possibility and plausibility
of entitlement to relief” and that determining whether a claim is sufficient is “a context-specific task
that requires the reviewing court to draw on its judicial experience and common sense”) (internal
quotation marks omitted). Bald allegations of bribery are not sufficient without facts supporting an
inference that bribery is a plausible, as opposed to a merely possible, explanation for the challenged
action. Mikhail v. Kahn, 2014 WL 3309172 * 2 (3d Cir. 2014) (finding bald allegations of
conspiracy between opposing party and judicial officials insufficient because plaintiff “failed to
allege plausible facts sufficient to support a claim of joint activity” and noting that, post Iqbal, a
plaintiff must “assert facts from which a conspiratorial agreement can be inferred”); Stokes v. Lusker,
425 Fed. Appx. 18, 22 (2d Cir. 2011 (finding “speculation about bribes [of board members] cannot
‘nudge[] . . . claims across the line from conceivable to plausible.’”).

10

In arguing that his allegations of conspiracy and bribery suffice, Plaintiff asserts that the
“sequence of events . . . shows that defendants attempted to accomplish the goal of acquiring the
property . . . without payment of just compensation to Paul, a SCDOT Scheme” and “none of the
parties challenged the state officials’ right to condemn or objected to the State (SCDOT) acquiring
the property.” ECF No. 50 at 15. These and related allegations do not raise an inference of
conspiracy to deprive Plaintiff of any legal right, much less a conspiracy achieved through bribery
of judicial officers. Instead, they suggest that Defendants (other than Ormond) took a litigation
position contrary to the position taken by Plaintiff and that the court ultimately accepted these
Defendants’ position rather than Plaintiff’s position.7 That some statements may have been made
in the proceedings that mischaracterized or misrepresented Plaintiff’s actions or positions was a
matter for correction in the state court proceedings. While not necessary to this court’s ruling, it is
clear from Plaintiff’s allegations that he had an opportunity to and did offer contrary argument (in
the state trial court and on appeal). That Plaintiff was unsuccessful in those arguments does not raise
an inference of conspiracy (including one involving bribery) because it does not move such an
inference into the realm of plausible as opposed to merely possible malfeasance.
Personal Representative of Estate. As to Iiene A. Buckles, Plaintiff argues the allegations
in the Amended Complaint show personal participation in a conspiracy because Plaintiff made a
claim against the estate which the estate denied. ECF No. 40 at 13. This argument misses the mark
because, even if it suggests some action by this Defendant (or the estate she represents), it does not

7

Plaintiff’s allegations relating to his own attorney, Ormond, suggest a disagreement
between counsel and client regarding legal strategy, quite possibly based on differences regarding
what was legally permissible. Even if the attorney violated some duty to the client as a result of such
disagreements (and the court is not suggesting that any such violation occurred), it would not suffice
to support a claim that the attorney engaged in a conspiracy with opposing parties.
11

raise an inference that the alleged action was part of a conspiracy to violate Plaintiff’s constitutional
rights.
De Novo Review. As noted above, this court has conducted a detailed, de novo review of
Plaintiff’s Amended Complaint. This review confirms that Plaintiff’s allegations of conspiracy and
bribery rest on unwarranted inferences drawn from his disagreement with his attorney’s advice and
handling of the case, motions filed and actions taken by opposing counsel and parties within the
judicial proceedings, and judicial rulings.
The allegations relating to the parties and their counsel suggest the parties engaged in
settlement and similar negotiations as is typical in legal proceedings. They also suggest that Landlord
and the SCDOT acted cooperatively in opposing Plaintiff’s claims, consistent with their settlement
agreement. Nothing in these actions or the cooperation provision in the settlement agreement
between the SCDOT and Landlord suggests the existence of a conspiracy to deprive Plaintiff of his
constitutional rights to due process or equal protection. The same is true as to any alleged
misstatements of Plaintiff’s position in the course of the proceedings, which Plaintiff, in any event,
had the opportunity to and did address in the state court proceedings.
As to judicial rulings, Plaintiff makes various allegations that Defendants attempted to
mislead and bribe three state court judges and, in fact, did mislead and bribe Judge Lloyd, and
possibly misled a third judge, Judge Thomas Cooper. Plaintiff offers nothing other than speculation
in support of these allegations, based on the judges’ granting of motions Plaintiff opposed and
believes were improperly granted. These allegations do not give rise to a reasonable inference of
bribery.

12

In sum, after conducting a de novo review of the Amended Complaint and Plaintiff’s
objections to the Report, and considering the record and applicable law, the court agrees with the
conclusions of the Magistrate Judge. Accordingly, the court adopts and incorporates the Report and
Recommendation by reference in this Order as corrected and supplemented above and dismisses this
action.8
CONCLUSION
For reasons stated in the Report, the court dismisses the action without prejudice and without
issuance and service of process. The Clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.

s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
Senior United States District Judge
Columbia, South Carolina
October 8, 2014

8

The sole correction relates to the reference to “evidence” rather than “allegations.” See
supra n. 3.
13